Lee v. Clark, 16779

• Citation: 77 S.E.2d 485,224 S.C. 138
• Decision Date: 10 September 1953
• Docket Number: No. 16779,16779
• Parties: LEE v. CLARK et al.
• Court: South Carolina Supreme Court

Page 485

77 S.E.2d 485

224 S.C. 138

LEE v. CLARK et al.

No. 16779.

Supreme Court of South Carolina.

Sept. 10, 1953.

Leppard & Leppard, Chesterfield, for appellants.

Samuel Want, Sam Rogol, Leroy M. Want, Darlington, for respondent.

OXNER, Justice.

This action was brought for the purpose of obtaining an adjudication as to the constitutionality of Act No. 856 of the 1952 Acts of the General Assembly, 47 St. at L. 2111. It is here on appeal from an order overruling a demurrer to the complaint and holding that the challenged legislation is unconstitutional.

The Act, omitting portions not pertinent to this controversy, is as follows:

'Whenever two or more school districts of Chesterfield County are consolidated into a single district by resolution of the county board of education, the county board shall appoint a board of trustees of nine members for the consolidated district; provided, however, that the term of office of said trustees shall cease and determine on the 31st day of December subsequent to the next general election after their appointment by the County Board of Education of Chesterfield County; and, provided, further, that the trustees of such consolidated public school districts of Chesterfield County shall be elected by the resident qualified electors of each of said consolidated public school districts, respectively, in the General Election held next after the consolidation and creation of said Consolidated Public School Districts. Said school district trustees shall be resident qualified electors of the school districts, respectively which they are to serve as trustees. Not less than three of said consolidated school district trustees in each of said school districts, shall be women electors. In the election of said trustees for said school districts, the three women candidates, in each of said school districts, receiving the largest number of votes cast for the women cadidates, shall be declared duly elected trustees of each of said school districts, respectively, and the six other candidates, in each of said school districts, who shall receive the highest number of votes cast in said school district elections, whether men or women electors, shall be declared duly elected; provided, however, if there are less than three women electors, who are candidates in any of said school district elections, that the women receiving the highest number of votes cast for the women candidates, in any school district, shall be declared duly elected as trustees of the particular school district; and, provided further, that if there are no women candidates in any of said school district elections, that the nine candidates receiving the highest number of votes, cast in said elections, in each of said school districts, respectively, shall be declared duly elected as the trustees of their respective school districts. The term of office of the trustees elected under the provisions of this act shall commence on the 1st day of January next after their election and continue for a term of two years and until their successors in office have duly qualified. * * *'

In accordance with the terms of the foregoing Act, at the general election held in the fall of 1952, appellants, six men and three women, were duly elected trustees of a consolidated school district in Chesterfield County known as District No. 3. In January, 1953, respondent, a qualified elector and taxpayer in said district and a patron of the schools therein, brought this action seeking an adjudication that the 1952 statute is unconstitutional, and asking that the election of appellants as trustees thereunder be declared null and void. The constitutionality of this legislation is assailed on numerous grounds, but the principal questions raised are that the Act denies the equal right given to every qualified elector by Article I, Section 10 of the Constitution 'to elect officers and to be elected to fill public office'; that it violates that portion of Article II, Section 2, which provides that 'every qualified elector shall be eligible to any office to be voted for, unless disqualified by age, as prescribed in this Constitution'; and that it denies the equality of rights and privileges guaranteed by the Constitution, in that it discriminates against men and gives a preference to women in the election of school trustees.

The first question raised by the demurrer is that respondent has not the requisite interest to question the validity of the Act. This action is brought under the provisions of the Uniform Declaratory Judgments Act, Volume I, Code of 1952, Title 10, Chapter 24, by the express terms of which, Section 10-2003 of the 1952 Code, the determination of the constitutionality of a statute is a proper subject of judicial decision by declaratory judgment. The propriety of such a proceeding has been consistently recognized. But any such action must be brought by a person having a substantial interest in the subject matter of the litigation and to establish such an interest, he must show that he will be directly affected by the enforcement of the statute questioned. We think respondent has such interest. He asserts the invasion of his political rights. On page 562 of an annotation in 174 A.L.R., it is stated: 'An individual whose civil or political rights are directly affected by a statute may have the necessary interest to challenge the validity of the statute by a declaratory judgment proceeding.' Respondent also has an interest in the controversy in his capacities as a taxpayer of the district and a patron of the schools therein. The trustees are charged with certain duties with reference to the general management and conduct of the schools in this district, including the selection of teachers and the determination of the fiscal policies. Respondent has a right to ask that the school affairs be managed by a lawfully constituted body of trustees. In fact, the public interest requires that the validity of this Act be promptly determined.

Appellants next contend that under Section 10-2256 of the 1952 Code, an action of this kind must either be brought by the Attorney General in the name of the State, or by a private party on leave granted by a circuit judge. We do not think this section is applicable here. Where under the Uniform Declaratory Judgments Act an adjudication is sought as to the constitutionality of a statute, it is only required that the Attorney General be served with a copy of the proceedings and given a right to be heard. Section 10-2008 of the Code of 1952. This has been done. A certificate has been filed by the Attorney General stating that prior to the institution of this suit, he was requested to give an opinion as to the constitutionality of this Act but due to lack of available precedent on which to base an opinion, he advised that the question be submitted to the courts for a decision. He further stated that he had received copies of the pleadings but that since all parties were represented by able counsel, he had concluded not to participate in the hearing. In effect, the Attorney General has joined in the request for an adjudication as to the constitutionality of this Act.

Having disposed of the preliminary questions, we now turn to the merits of the controversy. The Act provides for a board of nine trustees, not less than three of whom shall be women, to be elected by the qualified voters of the consolidated district. There then follows the novel provision that 'the three women candidates, in each of said school districts, receiving the largest number of votes cast for the women candidates, shall be declared duly elected trustees of each of said school districts, respectively, and the six other candidates, in each of said school districts, who shall receive the highest number of votes cast in said school district elections, whether men or women electors, shall be declared duly elected; provided, however, if there are less than three women electors, who are candidates in any of said school district elections, that the women receiving the highest number of votes cast for the women candidates, in any school district, shall be declared duly elected as trustees of the particular school district'. (Italics ours.)

It will be noted that in order for a man to be elected trustee, he must be among the six receiving the highest number of votes cast, while a woman need only receive the largest number of votes cast for the women candidates. This permits a woman to be elected even though she receives only a negligible portion of the votes cast at said election. It clearly appears that preferential treatment is given to women candidates. May the Legislature thus discriminate against men?

The first question for determination is whether the Legislature may in addition to the constitutional mandate that a public officer be a qualified elector, require other conditions for eligibility with respect to the office of school trustee. The Court below held that this could not be done. It was concluded that under Article I, Section 10, and Article II, Section 2, of the Constitution, all qualified electors, whether men or women, are equally eligible to hold the office of school trustee; and that the Legislature was without authority to add a qualification that a certain proportion of a board of tru...